The 2017 National Lawyers Convention was held on Thursday, November 16 through Saturday, November 18 at the Mayflower Hotel in Washington, D.C. The topic of the convention was: Administrative Agencies and the Regulatory State.

Prof. Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law; Director of the Environmental Law Advocacy Center; Executive Director, Project for Older Prisoners, The George Washington University Law School

Event Video

Listen & Download

Description

Senator Tom Cotton opened the 2017 National Lawyers Convention on November 16 at the Mayflower Hotel in Washington, DC. He was introduced by Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society.

Event Video

Listen & Download

Description

Statutory administrative law judges (ALJ) located within each agency adjudicate administrative law cases brought by agency enforcement personnel, located in the same building as the judges. These judges do not enjoy tenure during good behavior or an irreducible salary. Their rulings are often appealable only to the administrative agency itself and only later to an Article III Court, and then only on a very deferential standard of judicial review. Civil jury trial is not currently available in administrative law judicial proceedings and the rules of evidence and the burden of proof arguably operate in a manner that favors the agency. This panel will assess the constitutionality of current law and ask whether Congress ought to change the law and, if so, how. Should ALJs have life tenure? Should they be housed separately from their agency?

Event Video

Listen & Download

Description

A number of conservative and libertarian organizations have engaged in litigation against regulatory overreach in the last three decades. Charles Murray even wrote a book, By the People, calling for a "Madison Fund" to expand the fight against the regulatory state. Does the election of the deregulatory Trump Administration moot these efforts, or is there more to be done? Will states such as California act to fill a perceived regulatory gap, and will litigation at the state level increase? How have and how should organizations adjust their strategy? What is the litigation agenda in the short- and long-run?

Share

Event Video

Listen & Download

Description

President Trump's administration has helped renew interest in federalism among Democrats and liberals. Is there now more opportunity for cross-ideological support for this important structure of the Constitution? Or do continuing divisions on the nature of federalism such as the debate between competitive and cooperative federalism make this an unpromising alliance?

Prof. John Eastman, Henry Salvatori Professor of Law and Community Service and Director, Center for Jurisprudence, Dale E. Fowler School of Law, Chapman University

Share

Event Video

Listen & Download

Description

As an advisor to Woodrow Wilson, Louis Brandeis observed that “We can have democracy in this country, or we can have great wealth in the hands of a few, but we can't have both." Concerns about market concentration – with particular focus on the tech sector and such issues as use of, and access to, consumer data – have generated renewed interest in a Brandeisian approach, which has also found its way into the Democratic Party's “Better Deal." Has the time come for this New Brandeis Movement or is it merely, as others would have it, “hipster antitrust"? Should antitrust enforcement encompass such concerns as jobs, wages, data privacy, and viewpoint diversity in media, or is the consumer welfare standard's narrower focus on prices and consumer choice still appropriate? Would broadening antitrust's mandate raise rule of law concerns? And is this a genuinely new debate or is it a return to the familiar concern that “antitrust dosesn't fit the tech sector," which drove the George W. Bush era Antitrust Modernization Commission?

Event Video

Listen & Download

Description

Through regulation and enforcement, the Equal Employment Opportunity Commission, National Labor Relations Board and U.S. Department of Labor can have a significant negative or positive impact on our economy. The Trump Administration had a quick start on addressing regulatory reach by issuing three executive actions in its first month to freeze regulations and reduce regulatory costs. But, the pace of political appointments has meant a slow start to policy changes at the agencies. Join Secretary of Labor Alexander Acosta and leaders from the EEOC and NLRB to hear about personnel and policy at their agencies.

Hon. R. Alexander Acosta, Secretary, United States Department of Labor

Hon. Nicholas C. Geale, Chief of Staff and Acting Solicitor, United States Department of Labor

Event Video

Listen & Download

Description

In 2011, Congress created a new administrative tribunal in the U.S. Patent Office with the power to cancel previously granted patents, called the Patent Trial & Appeal Board (PTAB). The PTAB has become a flashpoint of controversy. Some companies and organizations defend it as an important tool for eliminating invalidly issued patents. Critics have highlighted a wide range of concerns, including, among others, not providing patent-owners with basic due process protections and a structural bias against patents that has led to inordinately high “kill" rates. In Oil States v. Greene's Energy Group, the Supreme Court will decide whether assigning such power to an administrative agency is consistent with the constitutional requirements of Article III, the Seventh Amendment, and the nature of patents as property rights. At the intersection of patent law, administrative law, and constitutional law, Oil States is a blockbuster case in the October 2017 term that will impact the governmental branches, the law and the innovation economy.

Prof. Gregory Dolin, Co-director of the Center for Medicine and Law, University of Baltimore School of Law

Prof. John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law

Prof. Arti K. Rai, Elvin R. Latty Professor of Law, Duke University School of Law

Event Video

Listen & Download

Description

We have seen two consecutive years of an alarming increase in violent crime, at least in some major urban areas. This comes after an entire generation of decreasing crime, to the point that crime rates are half what they were in the early 1990's. Why has crime started to rise again, and what should be done about it? Are incarceration rates a factor?

Event Video

Listen & Download

Description

At both the federal and state levels, bureaucrats wield power to make decisions that substantially impact the exercise of religion. From interpreting and enforcing public accommodations laws to administering vast regulatory regimes and deciding how all of these laws interact with RFRAs, agencies headed by political appointees are often charged with determining --- at least in the first instance --- the extent to which generally applicable law will impinge on religious freedom. Who will be required to provide contraceptive coverage; how will religious accommodations be extended, and to whom? Must bakers and photographers with religious objections service gay weddings? Must doctors perform surgeries on patients that violate their faith and medical judgment? Even without a change in legislation, the answers to such questions often flip after new administrations appoint new agency heads. This panel will discuss whether the administrative state places religious freedom in too precarious a position, and if so, what can and should be done about it.

Prof. William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law

Mr. Mark L. Rienzi, Senior Counsel, The Becket Fund for Religious Liberty and Professor of Law, Columbus School of Law, The Catholic University of America

Event Video

Listen & Download

Description

Despite the Constitution vesting “[a]ll legislative Powers herein granted" in Congress, today lawmaking by administrative agencies dwarfs lawmaking by Congress by any measure of either quantity or significance. Much congressional lawmaking consists of broad instructions to administrative agencies to determine the norms that govern people's conduct. Some of those delegations made prior to 1983, many of which are still on the books, were possibly made on the assumption that Congress retained a legislative veto over agency actions, but the Supreme Court held such legislative vetoes to be unconstitutional because Congress can only overrule agencies with a bill that passes both Houses of Congress and that is presented to the President for his signature or veto. In 1996, the Congressional Review Act provided a mechanism for legislative cancellation of rules, and the statute has roared to life in the Trump Administration after being used only once in its first two decades. The House of Representatives has recently passed a bill called the REINS Act, which would treat agency regulations affecting the economy by more than $100,000,000 as proposals that would only go into effect if passed using fast-track procedures by the House of Representatives and the Senate. The REINS Act presents major constitutional questions in its present form because it does not require that agency regulations approved by the House and the Senate be presented to the President. This panel will discuss the role of Congress in creating and controlling the administrative state.

Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates

Prof. Peter Strauss, Betts Professor of Law, Columbia Law School

Prof. Chris Walker, Associate Professor of Law, Ohio State University, Moritz College of Law

Event Video

Listen & Download

Description

Advocates of limited government are sometimes accused of being blind to issues of race and sex. Here's one way in which that might be true: Over the last few decades our legal system has been increasingly shaped by identity politics. Legislation often contains numerous benefits aimed at one or more identity groups. But perhaps even more strikingly, race and sex increasingly permeate the activity of regulatory agencies. For example, disparate impact liability, originally the brainchild of EEOC lawyers, used to be limited to employment law. But in more recent years it has spread to areas like housing and credit, thus putting lenders and landlords in the same boat with employers, where every criterion they use for hiring, promoting, lending, or leasing is presumptively illegal. Elected officials who otherwise support the principles of limited government are often reluctant to push back when expansions of the administrative state are couched in terms of race or sex. Are they being prudent? Or something else?

Prof. Gail Heriot, Professor of Law, University of San Diego School of Law

Event Video

Listen & Download

Description

Today, every bar, restaurant, sidewalk, road and bridge anywhere in the world has become a terrorist target. Attacks are often conducted by lone wolves or small cells. This makes the acquisition and sharing of intelligence by government agencies an urgent priority. Yet nations must find a balance between surveillance and privacy. The panelists have faced these issues at the highest levels of their governments and will share their views.

Dr. August Hanning, Former State Secretary, The Federal Interior Ministry, Federal Republic of Germany

Mr. Robert Hannigan, Former Director, Government Communications Headquarters, United Kingdom

Hon. Michael Mukasey, Of Counsel, Debevoise & Plimpton LLP and former United States Attorney General

Hon. Nathan A. Sales, Ambassador-at-Large and Coordinator for Counterterrorism, United States Department of State

Share

Event Video

Listen & Download

Description

The Internet has dynamically changed the way we live. It touches every sector of the U.S. and global economies. For two decades, it flourished in an environment devoid of heavy-handed regulatory oversight, resulting in $1.5 trillion in investments by Internet Service Providers. However, the FCC dramatically changed course in 2015 when it reclassified broadband as an old style utility regulated under Title II of the Communications Act of 1934. Earlier this year, the FCC initiated a new proceeding, Restoring Internet Freedom, that proposes to return to the classification of broadband service as a Title I information service. But the legal and policy debate continues with passionate supporters on both sides.

Moving forward, how should these tensions be addressed? How should the FCC move forward with its Internet Freedom proceeding? Is there a legislative or regulatory fix? Is there a role for other administrative agencies? Should so called "edge companies" (like Google and Facebook) be regulated differently from Internet Service Providers? Today's panel will explore these and other issues.

Share

Event Video

Listen & Download

Description

Libel law leads two lives. Most famously, there is the life of presidential candidates and the New York Times; of celebrities and the National Enquirer; of exposes in Rolling Stone. The rules here seem settled, with the “actual malice" standard and public/private figure distinctions. President Trump seems to be questioning whether they were settled right -- were they?

But there is also the life created by the Internet: of Yelp reviews, of gripe blogs, of consumer complaints on RipOffReport and sites such as BadBoyReport.kr and ShesAHomeWrecker.com. People are finding it easier than ever to widely publicize their grievances, whether accurate or not. Here the questions focus more on remedies than on “actual malice" and similar substantive standards. The traditional compensatory, presumed, and punitive damages remedies are often seen as largely pointless. Criminal libel survives, and is in some measure being revived; should it be? Injunctions against libel, long thought by many to be quintessential unconstitutional prior restraints, are routine; is that good? As to either life of libel law, how can the law punish defamatory falsehoods without unduly deterring accurate accusations?

Mr. Paul Alan Levy, Attorney, Public Citizen Litigation Group

Ms. Libby Locke, Partner, Clare Locke LLC

Prof. Rodney A. Smolla, Dean and Professor of Law, Widener University Delaware School of Law

Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, University of California Los Angeles School of Law

Event Video

Listen & Download

Description

Concern with “the regulatory state" often focuses on reforms to formal institutional structures and legal doctrines such as Chevron deference. But arguably these formal constraints only touch the tip of the iceberg regarding the issues of individual liberty and the rule of law raised by concerns about the regulatory state, because they fail to appreciate the myriad ways in which regulators exercise informal influence to accomplish ends that they might not be able or willing to achieve through more formal processes. In particular, the deep entanglement between the government and the banking system involves regulatory activity that is outside of the public eye. Commentators and practitioners who raise such concerns point to unwilling banks that felt pressured to take TARP money, implementation of Operation Choke Point, and some enforcement theories applied in the name of lending discrimination. Commentators on the other side of the argument point out the extent to which financial services affect not only individual lives but the welfare of the community and the nation, including the danger of financial crises. What does the experience of the financial services industry and its regulation tell us about concerns and challenges going forward?

Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law

Prof. Hal S. Scott, Nomura Professor of International Financial Systems and Director, Program on International Financial Systems, Harvard Law School

Event Video

Listen & Download

Description

On September 11, 2001, at the age of 45 and at the height of her professional and personal life, Barbara Olson was murdered in the terrorist attacks against the United States as a passenger on the hijacked American Airlines flight that was flown into the Pentagon. The Federalist Society believes that it is most fitting to dedicate an annual lecture on limited government and the spirit of freedom to the memory of Barbara Olson. She had a deep commitment to the rule of law and understood well the relationship between respecting limits on government power and the preservation of freedom. And, significantly, Barbara Olson was an individual who never took freedom for granted in her own life, even in her final terrifying moments-her inspiring and energetic human spirit is a testament to what one can achieve in a world that places a premium on human freedom.

Event Video

Listen & Download

Description

In recent decades, the President has sought to control the regulatory state through the Office of Management and Budget and through the office within OMB known as OIRA. This panel will discuss whether that is a positive development, and whether presidential review powers should apply to independent as well as executive branch agencies, which could be accomplished by allowing removal of independent agency heads by the President. Would such implementation of the unitary executive lodge too much power in one man, as clearly the Framers feared? Do views on such matters depend on who is the President at any given moment? The panel will also discuss possible changes to notice and comment rulemaking, and what guidance agencies ought to give to their prosecutorial law enforcement personnel.

Prof. Aditya Bamzai, Associate Professor of Law, University of Virginia School of Law

Prof. Susan Dudley, Director, Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University

Event Video

Listen & Download

Description

At its August 2016 meeting in San Francisco, the American Bar Association approved a major change to its Rules of Professional Conduct that will affect all lawyers if adopted by their licensing states. In pertinent part, the new Rule 8.4(g) would make it professional misconduct for a lawyer to “harass or knowingly discriminate against persons on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status." The new Rule applies to “conduct related to the practice of law" which (1) represents an expansion from the present conduct performed “in the course of representing a client" and (2) new Comment 3 defines conduct to “include[e] the operation and management of a law firm or law practice."

Event Video

Listen & Download

Description

How much leeway do agencies have in implementing federal law? What is the source of this leeway? In whom is it vested? What is the remedy for exceeding it? What are the consequences of exceeding it?

Administrative agencies are comprised of numerous components and employ tens of thousands of individuals with different ideas about what the law requires and what policies best serve the public interest. Individually or collectively, agency officials may disagree with all or parts of congressionally-enacted laws, with regulations properly adopted by prior administrations, or with the regulatory and enforcement priorities of politically-appointed agency leaders. They may even question the legitimacy of those political appointments.

Government resources are finite: both enforcement priorities and resource allocation decisions are primarily within the authority of the Executive Branch. Does permitting agency personnel, whether high ranking or low, to decide to selectively enforce or not enforce laws on the basis of their policy preferences or perceptions of legitimacy turn our government away from the rule of law and toward the rule of man?

What can agency personnel do when their agency refuses to administer laws for which it is responsible, or enforces laws they consider unlawful or ill advised? What recourse do Congress or the courts have if the Executive Branch will not follow their commands?

Prof. Michael McConnell, Richard and Frances Mallery Professor of Law, Director of the Constitutional Law Center; Stanford Law School and Senior Fellow, Hoover Institute

Mr. Stuart S. Taylor Jr., Contributing Editor, National Journal

Prof. Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law; Director of the Environmental Law Advocacy Center; Executive Director, Project for Older Prisoners, The George Washington University Law School

Event Video

Listen & Download

Description

This panel will examine the history of the emergence of the Administrative State and will ask whether even in a reformed fashion such a state can ever be consistent with the separation of powers. The panelists will each comment on the separation of powers challenge to modern Administrative Law. Can modern Administrative Law be made consistent with the Framers' Constitution of 1787? The Framers envisioned a much smaller government. How does one govern and oversee in a meaningful way a government of this size? Is accountability practical? Does the idea of accountability need rethinking?

Event Video

Listen & Download

Description

Christopher J. Scalia and Edward Whelan have published a definitive collection of beloved Supreme Court Justice Antonin Scalia's finest speeches. The book, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived, covers a breadth of topics, including law, faith, virtue, the justice's pastimes, and his heroes and friends.

Prof. Rachel E. Barkow, Segal Family Professor of Regulatory Law and Policy; Faculty Director, Center on the Administration of Criminal Law, New York University School of Law